Controversy of Constitutional Court’s Role as Positive Legislator in Decision 90/PUU-XXI/2023

Kurniawan, basuki (2025) Controversy of Constitutional Court’s Role as Positive Legislator in Decision 90/PUU-XXI/2023. Fenomena, 24 (1). pp. 1-14. ISSN 2656-7369

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Abstract

The increasing involvement of the Constitutional Court in regulatory matters has sparked intense debate, especially after Decision No. 90/PUU-XXI/2023 concerning the age requirement for presidential and vice-presidential candidates. Issued close to the candidate registration deadline, this ruling raised concerns over the Court's shifting role from a negative to a positive legislator. Previous studies have not sufficiently explored this transformation through the lens of classical justice theory, leaving a critical gap in constitutional discourse. This study aims to (1) assess whether the decision constitutes a positive legislator act, (2) evaluate it using classical justice theory, and (3) compare it with similar rulings. Employing normative legal research, the study uses statutory, case, and conceptual approaches, with legal reasoning conducted through analogical and deductive interpretations of judicial precedents, constitutional norms, and justice principles. The analysis reveals that the Court has increasingly adopted regulatory functions, with Decision No. 90 reflecting this trend. However, it fails to align with Platonic justice ideals, lacking moral and procedural fairness. The study concludes that the Court's expanded role poses constitutional risks and contributes to ongoing debates on judicial activism versus legislative supremacy, offering a fresh perspective by applying classical justice theory.

Item Type:	Article
Subjects:	18 LAW AND LEGAL STUDIES > 1801 Law > 180103 Administrative Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180106 Comparative Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180108 Constitutional Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180119 Law and Society 18 LAW AND LEGAL STUDIES > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
Divisions:	Fakultas Syariah > Hukum Tata Negara
Depositing User:	Basuki Kurniawan
Date Deposited:	14 Jul 2025 02:14
Last Modified:	14 Jul 2025 02:14
URI:	http://digilib.uinkhas.ac.id/id/eprint/48224

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